Asif Ezdi's Legal Troubles

Mr. Asif Ezdi, a former ambassador to Germany, has some pretty serious legal troubles. Mostly, troubles are understanding how laws work in a constitutional democracy. Last week we wrote about how Ezdi was propagating the latest conspiracy theory in the media about Zardari expanding his powers by signing the 18th Amendment. Today, Mr. Asif is back misrepresenting the debate about judicial review.

In his column for today’s issue of The News, Mr. Asif Ezdi repeats several misleading and, at times, contradictory talking points while he engages in some partisan name-calling. He begins his column by referring to PML-N as “hoodlums” who have issued a “threat” to the judiciary. This is both uncalled for and unprofessional. Even if he does not support PML-N, Mr. Ezdi should take note that this is the second largest political party which holds 97 seats in parliament. As such, PML-N is supported by a large number of Pakistanis. Just because Mr. Ezdi does not agree with someone, it does not make them hoodlums.

He then goes on to suggest that concerns raised by members of PML-N and PPP about the possibility of some “hidden hands” trying to influence the constitution are “meant to intimidate the Supreme Court.” This is curious for two reasons: First, Mr. Asif Ezdi is no child. Actually, he was an Ambassador when Gen. Musharraf was in power. So surely he knows a thing or two about “hidden hands” and the fact that these are sadly not unheard-of in our politics. Second, doesn’t Asif Ezdi have it backwards? Doesn’t it make more sense to say that threatening to overturn the 18th Amendment is the Supreme Court trying to intimidate the government?

Ezdi did learn something since his latest column. He criticizes Abdul Hafeez Pirzada for making claims that are “beyond the realm of the possible.” But then he goes on to suggest that “there are many conceivable scenarios in which a constitutional amendment is so flagrantly in violation of the most elementary norms of democracy and of justice that it should not be permitted to stand.” Obviously this is true, but the question here is not whether there can be some bad amendment to the Constitution. That is obvious from the 17th Amendment.

The question, though, is who is the proper government authority to correct the constitution? The courts did not threaten to throw out the 17th Amendment. It is only the 18th Amendment when they have suddenly declared this power. So the question must be, is this within the rightful authority of the courts or the parliament? This is the actual debate, so let’s stick to it.

Mr. Asif Ezdi is very confused about the term “judicial review”. Judicial review is the doctrine that says that legislative and executive actions are subject to review by the courts to ensure they are compatible with the defining laws of the country. In Pakistan, this is the Constitution. Mr. Asif Ezdi argues that there is something even higher than the Constitution which he calls “basic structure.” But he cannot define what this basic structure is. Actually, nobody can because what it really means is “whatever I say.” That is not democracy, it is dictatorship.

Nevertheless, Ezdi suggests that constitutional amendments should be open to judicial review using a most poor logical sleight-of-hand.

Some of the arguments given by those who oppose a judicial review of constitutional amendments can be easily dismissed. The contention that such a judicial review is not possible because it is specifically excluded by Articles 239 (5) and (6) is clearly untenable, because it is a circular argument. It uses a premise to prove a conclusion that, in turn, is used to prove the premise. These clauses, incidentally, were inserted by Zia to give protection to amendments he had made to validate his martial law.

Ezdi does not realize it, but he has actually harmed his own argument here. First, the argument is not circular, as he claims, but actually answers his question. The court cannot declare the constitution unconstitutional. If there is something in the constitution, then it by definition is constitutional. Second, Ezdi dismisses Articles 239 (5) and (6) because they were inserted by Zia. But if the Supreme Court is responsible for throwing out parts of the constitution that are illegitimate, why have they not thrown these out before? It appears that there is some selectivity to the argument – again, “basic structure” means “whatever I say.” There is no logic to it.

Asif goes on to make more confused statements.

The constitutionality of a piece of legislation depends on whether it is in conformity with the Constitution, not on how many votes it received.

Here is one important clue as to part of Ezdi’s confusion. A constitutional amendment is not a regular piece of legislation like a bill for collecting taxes. Rather, once the constitutional amendment is approved, it becomes part of the constitution. Therefore, it cannot be out of conformity because it would have to be out of conformity with itself. That makes no sense.

Even an amendment decreed by a dictator has the same legal force or validity as one which was passed unanimously.

Here Ezdi is actually proves his entire argument wrong. By saying (correctly) that “an amendment decreed by a dictator has the same legal force or validity as one which was passed unanimously” he is saying that the only way to remove such an amendment is to amend the constitution again. This is what the parliament did in passing the 18th Amendment. Ezdi has made the case for the parliament, even when he did not mean to!

Ezdi continues with his confused explanations by making the following points:

Among these principles are the following: that the state would exercise its powers and authority through the chosen representatives of the people…A parliamentary form of government is not one of these founding principles, but ensuring the independence of the judiciary is.

It is amazing to think that Mr. Asif Ezdi’s logic actually contradicts itself so obviously. Did he not even read his own column before he submitted it for publication?

The conclusion of Ezdi’s column actually sets aside all of his previous writing and says that, whatever else, he is certain that Article 65A is not in keeping with the Constitution. On this, we agree. After all, there is no Article 65A so how can it be in conformity with the document? Actually, perhaps this is the fundamental problem with Asif Ezdi’s columns on the constitution and judicial review: He apparently has not yet read the documents he is discussing.